Ms V and Health Service Executive

Whether the HSE was justified in refusing an application, under section 9 of the FOI Act, for the deletion of certain personal information from the applicant’s medical records that are held by her GP in the UK

1 October 2019

Background

This is an unusual case where the applicant is seeking the amendment of certain information contained in her medical file which is held by her GP at a medical centre in the UK where she resides. It appears that the information in question originally emanated from the HSE.

On 8 January 2019, the applicant submitted an application under section 9 of the FOI Act to delete certain information from her medical records on the ground that the information in question was incorrect. The information relates to incidents that allegedly took place in and before 1992. She asked that the amended records be sent to her current GP.

On 10 June 2019, the HSE refused the application for amendment on the ground that it could not locate any such medical records. It informed the applicant that per the HSE’s retention policy, records such as those she was seeking to have amended were destroyed 20 years after the date of last contact between the patient and healthcare provider. It erroneously relied on section 15(1)(a) to refuse the application. That section provides for the refusal of a request for access to records where the records sought do not exist or cannot be found.

The applicant sought an internal review of that decision on 21 June 2019, following which the HSE affirmed its original decision.

On 20 July 2019, the applicant sought a review by this Office of the HSE’s decision. In her application for review, the applicant explained that the information at issue is on the front page of her medical records in the UK and that her current GP will not remove the information unless instructed to do so. She argued that the information is incorrect.

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the HSE’s correspondence with the applicant as outlined above and to communications between this Office and both the HSE and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing to remove certain information from the applicant’s medical records pursuant to the provisions of the FOI Act.

Analysis and Findings

Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. Under section 9(2), an application for amendment must, in so far as practicable, specify the record concerned and the amendment required. Under section 9(4), if the body decides to refuse to grant the application for amendment, it must attach to the record concerned a copy of the application for amendment or a notation indicating that the application has been made.

The provisions of section 9 are clear. For a right of amendment to exist, the record at issue must be held by the FOI body concerned.

The records the applicant is seeking to have amended in this case are not held by the HSE. Rather, they are held by the applicant’s GP in the UK. The FOI Act does not empower the HSE to amend records it does not hold. I note that under the Act, a reference to records held by a public body includes a reference to records under the control of that body. However, no argument has been made that the records identified by the applicant are under the control of the HSE and I am satisfied that this is not the case.

In the circumstances, I find that the HSE was not required to grant the application for the amendment of the records identified by the applicant in this case.

For the benefit of the applicant, I note that the HSE has provided a detailed explanation of why it could not, in any event, locate any medical records relating to her. In essence, its position is that any such records would have been destroyed in line with its records management policies. It explained that records created within the dates provided by the applicant were destroyed in line with its retention policy, i.e. after 8 years following last presentation to one relevant service and after 20 years following last presentation to another service where relevant records were potentially held.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse to amend the applicant's medical records under section 9 of the FOI Act on the ground that it does not hold the records at issue.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.